13 Trade Unions have won their judicial review challenge as the High Court in England has found that regulations implemented late last year, allowing employers to use temporary agency staff during strike action by their employees, are unlawful. In the case of Unison v Secretary of State for Business & Trade, the court found that the government had failed to comply with the mandatory consultation requirements under the Employment Agencies Act 1973. The court found there was virtually no consultation at all and that this was so unfair as to be unlawful and irrational.

The court didn’t rule on a second aspect of the claim in which the Unions claimed the government failed to prevent unlawful interference with the rights of Trade Unions and their members under Article 11 of the European Convention of Human Rights. This was not necessary because the lack of consultation point had been upheld.

As a result, if the government wishes, it can now undertake the necessary consultation and seek to reintroduce the legislation at a later date. If they do so the Trade Unions may raise another claim based on the second leg of their original arguments.

Any member currently faced with strike action should not seek to replace their employees with temporary labour, as this has been found to be unlawful. Please seek advice from the Legal & HR Team if you have any questions.